KCADP
Kentucky Coalition to Abolish the Death Penalty
Why do we kill people
who kill people
to show that killing
people is wrong.
NEWSLETTER NO. 13
AUGUST 1991
CRIME BILL MOVES TO HOUSE
Habeas a corpse; Racial Justice Act alive
When Congress reconvenes in September, House members
will consider this year’s ominous Crime Bill which, if passed,
aliows the death penalty for 51 federal crimes and strips all
citizens of access to habeas corpus review by Federal Courts.
The only redeeming feature is the inclusion of the Fairness in
Death Sentencing Act (H.R. 2851) which passed out of the
House Judiciary Committee Subcommittee on Civil and
Constitutional Rights on July 31, 1991 and will be added to the
Crime Bill.
Last year, the Fairness in Death Sentencing Act, then
known as the Racial Justice Act, passed in the House, was
defeated in the Senate and then, in a compromise in Confer-
ence, was stripped from the bill along with other death penalty
clauses.
Habeas Corpus Reform
HLR. 1400 contains several elements of habeas corpus
reform, not all of which are bad, some are even needed.
However, buried in this section, is an amendment to the current
law that says that if a state court has made a full and fair
determination of a factual issue, that decision shall be presumed
to be correct. An application also shail not be granted based on
a claim which has had a full and fair adjudication in state court.
Rehnquist Opposes Proposal
To non-lawyers this might sound alright. Nothing could be
further from the truth. Chief Justice William Rehnquist, on
May 15, 1990, speaking to the American Law Institute Annual
Meeting, said: “My own view is that while this [the full and fair
standard] approach might commend itself some years hence, it
does not do so at the present time. There have been a signifi-
cant number of capital sentences set aside because federal
courts decided that the sentences did not conform to the
requirements of the Eighth Amendment. . . If the present scope
of federal habeas review can be retained without the delay and
other faults contained in it, I think it should be.”
According to the Honorable Gilbert S. Merritt, Chief
Judge, US Court of Appeals for the Sixth Circuit, “In my view,
and in the view of a vast majority of judges, lawyers, and legal
scholars, passage of such an extreme measure would be a drastic
mistake.”
Listen to the Honorable James Oakes, Chief Judge, US
Court of Appeals for the Second Circuit: “If adopted, [the full
and fair standard]. . would eliminate federal habeas review
whenever the state court considered the petitioner's claim, even
where it is clear that the state court’s final ruling was incorrect
under federal constitutional standards in effect at the time the
decision was rendered. . . .It is difficult for me to conceive of a
proposal that could do more damage to the supremacy of
federal law and the protection of individual rights.”
Attorney Generals of various states, and over 75 former
US Attorneys and Assistant US Attorneys also oppose this
draconian measure.
If this amendment passes it means that even if the state
has erroneously rejected a valid Constitutional claim (for
example, that the prosecution has hidden evidence of the
defendant’s innocence from the jury, coerced a false confession,
discriminated by race in selecting a jury or made up evidence
used to convict), the federal courts will be forbidden to inter-
vene. Not even proof that the state’s unconstitutional actions
have caused a conviction of an innocent person will matter.
Congress passed the law establishing habeas corpus review
in 1867 to ensure that the Bill of Rights has the same meaning
for all citizens. This revision would overturn that protection,
leaving 50 state courts free to interpret the United States
Constitution as each saw fit.
Leo Frank Executed
In 1915 the Supreme Court refused to let Mr. Leo Frank
raise his constitutional claims in federal habeas proceedings
because he had received a full review in Georgia’s court. He
was Jewish, accused of murdering a Christian woman. An anti-
Semitic mob prevented him from being present for much of the
trial and scared an eyewitness from coming forward and
establishing his innocence. Frank was executed. Afterwards the
Supreme Court reversed its position. The House needs to send.
that same message back to the Senate in 1991. No more
miscarriages of justice.
Fairness in Death Sentencing Act
The Fairness in Death Sentencing Act, H.R. 2851, is alive in the
House and will be taken up when Congress reconvenes.
The language of H.R. 2851 is the same as last year when
three of Kentucky’s Representatives voted for the Act: Ron
Mazzoli, William Natcher, and Chris Perkins.
The Fairness in Death Sentencing Act has one purpose:
to allow the use of valid statistics as evidence of racial bias in
the imposition of the death sentence in a particular case. The
Act makes it unlawful to execute someone whose death sentence
is the product of race discrimination--based either on the race
of the victim or the defendant.
Continued on Page 4
Page 2
August 1991
Death Penalty Bits and Pieces
STEPHEN CHAPMAN, columnist for the
Oakland Tribune, writes that rather than
bar federal courts from considering any
alleged constitutional violations that have
been “fully and fairly” considered by
state courts, States should spend enough
money to make sure poor suspects have
decent lawyers. (07/23/91) Incompetent
and poorly paid attorneys often do a
terrible job defending their clients. This
leads to overturned convictions upon
appeal and additional costly re-trials.
KCADP has an even better suggestion:
abolish the death penalty.
SSS ee
L. M. TIPTON REED JR., suspended
from the practice of law three times in
the 1980’s, was suspended for four years
by the Kentucky Supreme Court on
November 29, 1990. He was suspended
for one year in 1981 for “willfully neglec-
ting” the matters of several clients; this
time it is for twice lying to a client.
According to an earlier November
article in The Courier-Journal, Reed, who
Tepresented death row inmate, Robert
Allen Smith, told a court that he hadn't
prepared for a capital case because he’d
forgotten the prosecutor was seeking the
death penalty.
There are currently 5 men on Kentuc-
ky’s death row whose trial lawyers have
been disbarred or had their licenses
suspended. .
a
MYTHS ABOUT the death penalty
abound. One such - it costs less to exe-
cute than imprison for life - keeps ex-
ploding, but few notice. Deafened by
cries for blood and blinded by poor judg-
ment, lawmakers seek to expand crimes
for which death is the punishment.
Lisa Rohner Schafer, writing in the
Casper, Wyoming Star-Tribune, reports
that Wyoming spent $2 million over a 10
year period to try and execute two men.
Neither were near the end of the process.
The daily prisoner housing cost is $34 in
Wyoming, less than $13,000 a year.
Jason Summers, staff writer for the
Bowling Green, Kentucky Daily News
(7/15/91), talks about a 1990 article in the
Northern Kentucky Law Review. Hous-
ing a criminal from age 18 to age 70 in
Kentucky would cost less than half of
what it costs to take him to trial and
through the various levels of appeal while
holding him on death row.
The Law Review article looked at the
Brian Keith Moore case. It said that it
would cost $795,000 to imprison him for
52 years, until he was 85. Efforts to
execute him have now cost between
$981,000 and $2 million. This case is
only about 20% through the appeals
process.
Kentucky’s General Assembly meets
again in 1992. Perhaps reason will take
over and when bills to expand the death
penalty are introduced, some astute
lawmaker will ask for a fiscal impact
Statement so Kentuckians aren't forced
to pay twice as much as necessary to
punish offenders and protect the public.
SENATE AND HOUSE leaders in the
General Assembly could call for a mora-
iorjum on executions until the true cost
to Kentuckians is determined. Points
made in an editorial appearing in The
Kentucky Post (4/24/91) give them every
reason to do so.
Commenting on the overturned convic-
tion of Paul Kordenbrock, the writer
suggesis that “we must ask if a death
sentence represents justice when appeals
are interminable and there is an under-
standable resistance to carrying it out.
More and more the death penalty is a
rhetorical ticket to get politicians elected
and to give us a false sense of security
that it is a deterrent to capital offenses.
Mostly, it deters justice by tying up valu-
able and limited resources in intermina-
ble appeals in which technicalities easily
overturn verdicts, Obviously, the judicia-
ty does not take lightly the burden of
condemning anyone to death.”
The Post argues for a penalty of life in
prison without parole: “The Common-
wealth would be better served with such
a penalty. Mr. Kordenbrock should
never breathe free again; a guarantee of
life imprisonment would be far better
justice than a death penalty dismissed on
a technicality.”
COLORADO'S SUPREME COURT
struck down that state’s death penalty
law recently because it automatically
imposes a death sentence when factors in
favor of and against a defendant are
equal. Before 1988, juries had to decide
if certain aggravating factors were pres-
ent, if there were mitigating factors and
then whether aggravating factors out-
weighed mitigating factors. Then they
had to decide on a sentence of life im-
prisonment or death. This last step was
removed by amendment in 1988, making
the death penalty automatic whenever
mitigating factors were equal to or out-
weighed aggravating factors.
The last execution in Colorado was in
1967. Luis Monge was executed for
killing his wife and three of his ten chil-
dren.
J.B. NESS wrote South Carolina Senator
Emest Hollings in June, 1991. Address-
ing the Senator, “Dear Fritz”, and sign-
ing the letter, “Bubba”, Ness said in part:
“Finally, I understand the Administra-
tion’s bill would eliminate most habeas
corpus claims by making the state courts’
tulings on federal constitutional issues
the ‘last word.’ As a former state Chief
Justice, I am sympathetic to the senti-
ments underlying this legislation. How-
ever, I agree with Chief Justice Rehn-
quist that this proposal goes too far in
limiting the power of the federal courts
to ensure that the Bill of Rights is uni-
formly applied throughout the states.
Federal habeas corpus still has a crucial
role to play in our constitutional system.”
August 1991
Page 3
Where We’ve Been
Members might be surprised to find this newsletter in the mailbox. It’s been over a year
since KCADP has issued it occasional newsletter. Postage costs are outrageous and, as you know,
major donors are not bankrolling the organization. Now that the Post Office has approved our non-
profit status, mailing costs will decrease and the newsletter can be more timely.
This past year was a busy one for Board members and others. No longer able to afford
the State Fair booth, members sought out smaller events and promoted the work of the Coalition
in more localized settings: e.g. the Boone County Fair (1990 and 1991), festivals in Washington and
Casey Counties, West Louisville Appreciation Day in Chickasaw Park. Later this year members
plan to attend a festival in Louisville’s Newburg neighborhood and Ham Days in Lebanon.
In January 1991, KCADP became charter members of the Kentucky Center for Public
Issues. This relatively new organization focuses on issues vital to the quality of life in the
Commonwealth. Certainly state-sanctioned murder is one such issue and our membership serves
to remind others of the need to change this public policy. It’s expensive to join: $1,500 payable
in three $500.00 installments. Three members donated $100.00 each and the other $200 for the first
year’s installment was paid by the Coalition. Readers who wish to help pay next year’s installment
should send contributions marked for this purpose.
On July 12, 1991, there was a reception honoring Senator Danny Meyer and former
representative Dottie Priddy for all each did to abolish capital punishment for the mentally retarded
in Kentucky. After expenses, donations in their honor netted over $500.00 for KCADP. Louisville
attorney Oliver Barber, Rev. Vernon Robertson, pastor of St. Martin Church in Louisville, and Rev.
Patrick Delahanty, Chair, KCADP, hosted the event. Jeff Wohl, owner of Framing Matters in
Louisville, donated two beautifully framed bill jackets of Senate Bill 172, an Act Relating to
Execution of the Mentally Retarded. Over 100 persons attended the gathering at the Afro-German
‘Tea Room, 639 South Shelby in Louisville, including Board members from around the State. Others
wishing to honor these two sensitive legislators by contributions to KCADP are invited to do so.
The report on pages 1 and 4 indicates there is much work to do and your membership is
important. Please check the mailing label on page four. If there is no date or if the date is prior
to 08/31/91, please renew your membership today. In January, Board Members selected increasing
membership as its first priority. You can help by keeping your membership current and by
recruiting at least one new member for KCADP in the few remaining months of 1991.
KCADP 1991
BOARD MEMBERS
Chair
Patrick Delahanty
Louisville
Secretary
Katie Nienaber
Members
David Funke
Pewee Valley
Janet Geurin
Louisville
Bernie Halvorsen
Lexington
Edward Heeg
Fort Thomas.
Kathleen Hils
Erlanger
Peter Houck
Louisville
Sandra MoClure
Lexington
Edward Stierits
Fort Thomas
Oleh Tustaniwsky
Louisville
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Page 4
August 1991
There is now compelling evidence, from more than 15
years of research, that racial considerations often determine
which defendants receive the death penalty. In February 1990,
the General Accounting Office found “a pattern of evidence
indicating racial disparities in the charging, sentencing and
imposition of death sentences.”
Kentucky’s System Biased
University of Louisville researchers, Dr. Gennaro Vito and
Professor Thomas Keil, published the results of an ongoing
study of race and capital sentencing in Kentucky in Justice
Quarterly, Vol. 7, No. 1, March 1990. On page 200 it states that
“Tn effect, the killing of a white was treated as an aggravating
circumstance by prosecutors....” On page 206, they conclude:
Insum, the results of the Kentucky death sentenc-
ing process in the post-Gregg era recall the statements
of Justice Douglas in the Furman decision. He noted
that the death penalty was “cruel and unusual” because
its application revealed that it was “pregnant with
discrimination” and was applied selectively to minorities
(Zimring and Hawkins 1986:56). Once again, the
Kentucky resulis show that the guidelines imposed by
the Court have failed to remedy this situation. Racial
discrimination continues to plague the capital sentencing
process.
Death sentencing jurisdictions throughout the U, S. show
results similar to Kentucky’s. Although African Americans and
whites are victims of homicide in roughly equal numbers, over
eighty percent of those executed since 1976, the modern era of
capital punishment, were convicted of killing white victims.
The Fairness in Death Sentencing Act will not abolish the
death penalty. States will be free to carry out any and all death
sentences, as long as they are not the product of racial bias. It
will not invalidate every death sentence even in states where
death sentencing is racially biased. It will affect those sentences
that fit the pattern of racially influenced cases, i.e., those cases
where, taking into account the brutality of the offenses, the
prior records of the offenders, and other nonracial characteris-
tics, race is left as the determining factor in the imposition of
the death penalty.
Defendant Has Burden of Proof
Under the Act, a person who believes that his or her death
sentence is the product of racial bias would be permitted to
prove it to a court by showing a racially identifiable pattern of
sentencing in a particular state. The defendant must provide
the proof. States may challenge the evidence used or may
demonstrate that the apparent racial pattern is explained by
such legitimate factors as the prior criminal records of those
individuals involved. If the defendant proves the point, only the
death sentence is set aside, not the conviction.
In a public opinion poll released in December 1989 by the
University of Louisville, the vast majority of Kentuckians
expressed a desire for a guarantee that race not be a factor in
death sentencing. The Fairness in Death Sentencing Act seeks
the same protection. A state could not comply with the Act by
adopting racial quotas. Quotas would clearly violate the law.
Broad Support for the Act
Both proponents and opponents of the death penalty
support this measure. Groups like the American Bar Associa-
tion, which has no position on the death penalty, also support
it. This wide range of support recognizes. that.the Act offers.a
feasible means of identifying and substantially eliminating the
influence of race in capital sentencing.
Members are reminded that letters to local newspapers on topics of interest help inform the public about the
“importance of enacting laws that promote equality of treatment and protection of all under the Constitution. The Fairness in
Death Sentencing Act promotes equality; the habeas reform measure undermines our rights.
To contact your representative in Congress, check phone books for local offices or use the Washington address:
U.S. House of Representatives, Washington, DC, 20515. The phone number in Washington is (202)225-3121. =
KCADP
KENTUCKY COALITION TO ABOLISH THE DEATH PENALTY
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